Catalina Lipscomb v. Nancy A. Berryhill, No. 5:2018cv01620 - Document 26 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Catalina Lipscomb v. Nancy A. Berryhill Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CATALINA L., ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, DEPUTY ) COMMISSIONER FOR OPERATIONS, ) SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. ED CV 18-1620-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on August 2, 2018, seeking review of 21 the Commissioner’s denial of benefits. The parties consented to 22 proceed before a United States Magistrate Judge on August 28, 2018. 23 Plaintiff filed a motion for summary judgment on March 8, 2019. 24 Defendant filed a motion for summary judgment on April 1, 2019. 25 Court has taken the motions under submission without oral argument. 26 See L.R. 7-15; “Order,” filed August 7, 2018. 27 /// 28 /// The Dockets.Justia.com 1 BACKGROUND 2 3 Plaintiff alleges disability since January 1, 2014, based 4 primarily on alleged orthopedic problems (Administration Record 5 (“A.R.”) 54, 66, 197, 204). 6 examined the record and heard testimony from Plaintiff and a 7 vocational expert (A.R. 17-734). An Administrative Law Judge (“ALJ”) 8 9 The ALJ found Plaintiff has certain severe impairments, including 10 “torn meniscus of the left knee, degenerative disc disease of the 11 lumbar spine [and] degenerative joint disease of the shoulders” (A.R. 12 22). 13 functional capacity (“RFC”) to perform a narrowed range of light work, 14 including the capacity to stand or walk for six hours out of an eight 15 hour workday, provided she has the option of sitting for five minutes 16 after standing for one hour (A.R. 25).1 17 the vocational expert, the ALJ determined that a person having this 18 RFC could perform certain jobs existing in significant numbers in the 19 national economy (A.R. 31-32, 57-59). 20 review (A.R. 1-4). However, the ALJ also found Plaintiff retains the residual Relying on the testimony of The Appeals Council denied 21 22 Plaintiff now argues: (1) substantial evidence fails to support 23 the ALJ’s findings with respect to Plaintiff’s capacity for standing 24 and walking; and (2) the ALJ discounted Plaintiff’s statements 25 concerning her subjective symptomatology without stating legally 26 27 28 1 A full range of light work requires six hours of standing or walking in an eight hour day. Social Security Ruling (“SSR”) 83-10. 2 1 sufficient reasons for doing so. 2 3 STANDARD OF REVIEW 4 5 Under 42 U.S.C. section 405(g), this Court reviews the 6 Administration’s decision to determine if: (1) the Administration’s 7 findings are supported by substantial evidence; and (2) the 8 Administration used correct legal standards. 9 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, See Carmickle v. 10 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 11 682 F.3d 1157, 1161 (9th Cir. 2012). 12 relevant evidence as a reasonable mind might accept as adequate to 13 support a conclusion.” 14 (1971) (citation and quotations omitted); see also Widmark v. 15 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 16 17 If the evidence can support either outcome, the court may 18 not substitute its judgment for that of the ALJ. 19 Commissioner’s decision cannot be affirmed simply by 20 isolating a specific quantum of supporting evidence. 21 Rather, a court must consider the record as a whole, 22 weighing both evidence that supports and evidence that 23 detracts from the [administrative] conclusion. But the 24 25 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 26 quotations omitted). 27 /// 28 /// 3 1 DISCUSSION 2 3 After consideration of the record as a whole, Defendant’s motion 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material2 legal error. Plaintiff’s contrary arguments are unavailing. 7 8 I. 9 Substantial Evidence Supports the ALJ’s Challenged RFC Assessment. 10 11 Substantial evidence supports the ALJ’s findings regarding 12 Plaintiff’s capacity to stand and walk. Consultative examiner Vicente 13 R. Bernabe, D.O., reported Plaintiff exhibited a normal gait without 14 the use of an assistive device, full range of motion in the shoulders 15 and knees and normal motor strength in the upper and lower extremities 16 (A.R. 353-56). 17 Plaintiff, that Plaintiff could stand and walk for six hours out of an 18 eight hour workday (A.R. 356). 19 evidence to support the ALJ’s challenged RFC findings. 20 Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007) (examining physician’s 21 opinion based on independent clinical findings constitutes substantial 22 evidence to support a non-disability determination); Tonapetyan v. 23 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (same). 24 /// The same examiner opined, based on his examination of This opinion constitutes substantial See Orn v. 25 26 2 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 4 1 Non-examining state agency physicians also opined that Plaintiff 2 retains a standing and walking capacity equal to or greater than the 3 capacity the ALJ found to exist (A.R. 75, 88, 103, 118). 4 here, the opinions of non-examining physicians do not contradict “all 5 other evidence in the record,” the opinions may furnish substantial 6 evidence to support the administrative decision. 7 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citation omitted); see 8 also Tonapetyan v. Halter, 242 F.3d at 1149 (opinion of non-examining 9 medical expert “may constitute substantial evidence when it is Where, as See Andrews v. 10 consistent with other independent evidence in the record”) (citation 11 omitted). 12 13 To the extent the evidence of record is conflicting, the ALJ 14 properly resolved the conflicts. See Treichler v. Commissioner, 775 15 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” to 16 resolve conflicts and ambiguities in the record); Andrews v. Shalala, 17 53 F.3d at 1039-40 (court must uphold the administrative decision when 18 the evidence “is susceptible to more than one rational 19 interpretation”). 20 21 The vocational expert testified that a person having the stated 22 RFC could perform light jobs existing in significant numbers (A.R. 57- 23 59). 24 benefits. 25 1989); Martinez v. Heckler, 807 F.2d 771, 774-75 (9th Cir. 1986). 26 /// 27 /// 28 // The ALJ properly relied on this testimony in denying disability See Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 5 1 2 II. The ALJ Stated Legally Sufficient Reasons for Discounting Plaintiff’s Subjective Symptomatology. 3 4 An ALJ’s assessment of a claimant’s statements regarding 5 subjective symptomatology is entitled to “great weight.” Anderson v. 6 Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 7 F.2d 528, 531 (9th Cir. 1985). 8 claimant’s medically determinable impairments reasonably could be 9 expected to cause some degree of the alleged symptoms of which the 10 claimant subjectively complains, any discounting of the claimant’s 11 complaints must be supported by specific, cogent findings. 12 v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 13 F.3d 821, 834 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 14 1282-84 (9th Cir. 1996) (indicating that ALJ must offer “specific, 15 clear and convincing” reasons to reject a claimant’s testimony where 16 there is no evidence of malingering).3 17 claimant’s testimony “must be sufficiently specific to allow a 18 reviewing court to conclude the ALJ rejected the claimant’s testimony 19 on permissible grounds and did not arbitrarily discredit the Where the ALJ finds that the See Berry An ALJ’s findings regarding a 20 21 22 23 24 25 26 27 28 3 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d at 1102; Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 6 1 claimant’s testimony.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2 2004) (internal citations and quotations omitted); see SSR 96-7p 3 (explaining how to assess a claimant’s credibility), superseded, SSR 4 16-3p (eff. March 28, 2016).4 5 sufficient reasons for deeming Plaintiff’s subjective complaints less 6 than fully credible. As discussed below, the ALJ stated 7 8 As the ALJ pointed out, there exists evidence Plaintiff was still 9 working as of June of 2014, more than five months after she now claims 10 she became disabled (A.R. 27, 29, 340). And yet, Plaintiff denied 11 under oath having done any work after 2013 (A.R. 48-49). 12 inconsistency, and the evidence Plaintiff worked long after her 13 alleged disability onset date, properly impugn Plaintiff’s assertion 14 that her symptoms have been of disabling severity. 15 Commissioner, 554 F.3d 1219, 1227 (9th Cir. 2009) (upholding ALJ’s 16 credibility determination where the claimant had worked as a personal 17 caregiver and also had sought out other employment); Thomas v. 18 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistencies 19 between claimant’s testimony and conduct among the “clear and 20 convincing reasons” for discounting claimant’s testimony); Verduzco v. 21 Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between 22 claimant’s testimony and conduct cited as a “clear and convincing” 23 reason for rejecting the claimant’s testimony). This See Bray v. 24 4 25 26 27 28 The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16-3p “makes clear what our precedent already required”). 7 1 The ALJ also observed that Plaintiff declined surgery for her 2 torn meniscus and received only relatively conservative treatment for 3 her various alleged impairments (A.R. 26-27, 539, 721, 726). 4 Observations regarding the relatively conservative nature of a 5 claimant’s treatment properly may factor into the evaluation of a 6 claimant’s subjective complaints. 7 1035, 1039-40 (9th Cir. 2008); Parra v. Astrue, 481 F.3d 742, 751 (9th 8 Cir. 2007), cert. denied, 552 U.S. 1141 (2008); Osenbrock v. Apfel, 9 240 F.3d 1157, 1166 (9th Cir. 2001); see also Coelho v. Astrue, 2011 See Tommasetti v. Astrue, 533 F.3d 10 WL 3501734, at *5 (N.D. Cal. Aug. 10, 2011), aff’d, 525 Fed. App’x 637 11 (9th Cir. 2013) (claimant’s inadequately explained declination of 12 recommended surgical treatment may, under some circumstances, 13 undermine the claimant’s subjective complaints of allegedly disabling 14 pain). 15 16 The ALJ also referenced evidence that Plaintiff has engaged in 17 significant daily activities, including washing dishes, cooking, doing 18 laundry, grocery shopping, light housework, using public 19 transportation, going to church and caring for a baby (A.R. 29-30, 20 251-55, 273, 276). 21 Plaintiff’s functional limitations are not as profound as Plaintiff 22 alleges. 23 (inconsistency between claimed incapacity and admitted activities 24 properly can impugn a claimant’s credibility); Burch v. Barnhart, 400 25 F.3d 676, 680-812 (9th Cir. 2005) (daily activities can constitute 26 “clear and convincing reasons” for discounting a claimant’s 27 testimony); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 28 (claimant’s testimony regarding daily domestic activities undermined Such activities properly may suggest that See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) 8 1 the credibility of her pain-related testimony); Morgan v. 2 Commissioner, 169 F.3d 595, 600 (9th Cir. 1999) (evidence of 3 claimant’s ability to “fix meals, do laundry, work in the yard and 4 occasionally care for his friend’s child serve as evidence of [the 5 claimant’s] ability to work”). 6 7 The ALJ also stressed that the objective medical evidence 8 supported a discounting of Plaintiff’s claims of disabling 9 symptomatology (A.R. 26-30). While a lack of objective medical 10 evidence to corroborate the claimed severity of alleged symptomatology 11 cannot form the “sole” basis for discounting a claimant’s subjective 12 complaints, the objective medical evidence is still a relevant factor. 13 See Burch v. Barnhart, 400 F.3d at 680; Rollins v. Massanari, 261 F.3d 14 at 857; see also Carmickle v. Commissioner, 533 F.3d 1155, 1161 (9th 15 Cir. 2008) (“Contradiction with the medical record is a sufficient 16 basis for rejecting the claimant’s subjective testimony”); SSR 16–3p 17 (“[O]bjective medical evidence is a useful indicator to help make 18 reasonable conclusions about the intensity and persistence of 19 symptoms, including the effects those symptoms may have on the ability 20 to perform work-related activities . . .”). 21 22 To the extent one or more of the ALJ’s stated reasons for 23 discounting Plaintiff’s subjective statements may have been invalid, 24 the Court nevertheless would uphold the ALJ’s determination under the 25 circumstances presented. 26 1162-63 (despite the invalidity of one or more of an ALJ’s stated 27 reasons, a court properly may uphold the ALJ’s determination where 28 sufficient valid reasons have been stated). See Carmickle v. Commissioner, 533 F.3d at 9 In the present case, the 1 ALJ stated sufficient valid reasons to allow this Court to conclude 2 that the ALJ discounted Plaintiff’s subjective statements on 3 permissible grounds. 4 Court therefore defers to the ALJ’s determination. 5 Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will defer to 6 Administration’s credibility determination when the proper process is 7 used and proper reasons for the decision are provided); accord Flaten 8 v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 9 1995).5 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// See Moisa v. Barnhart, 367 F.3d at 885. The See Lasich v. 24 25 26 27 28 5 The Court need not and does not determine herein whether Plaintiff’s subjective complaints are credible. Some evidence suggests that those complaints may be credible. However, it is for the Administration, and not this Court, to evaluate the credibility of witnesses. See Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989). 10 1 CONCLUSION 2 3 For all of the foregoing reasons,6 Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: April 12, 2019. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 6 25 26 27 28 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 11
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